In his brief asking the U.S. Supreme Court to overturn the decision by the Supreme Court of Colorado disqualifying from office under Section 3 of the 14th Amendment for his role in inciting the January 6th insurrection, former president Donald Trump makes several faulty arguments, including that the president is not an officer of the United States, that enforcing Section 3 against him is anti-democratic and that he did not receive due process.
In our briefs filed on behalf of our clients, we rebut these arguments, outlining why Trump must remain disqualified. In addition, last week, in amicus briefs filed by eminent historians, retired conservative judges, democracy experts, non-partisan legal groups, former Republican governors and members of Congress and more, those arguments are further rebutted. Below, some of the key points raised by these expert amici are laid out.
Trump’s argument that enforcing Section 3 is antidemocratic:
Trump argues that enforcement of Section 3 against him for attempting to overturn the 2020 presidential election would be antidemocratic because he is a popular candidate for office. Menacingly, he asserts that his disqualification would “unleash chaos and bedlam” across the country.
What our amici say:
Democracy experts including Rachel Kleinfeld, senior fellow at the Carnegie Endowment for International Peace and Tim Snyder, the Richard C. Levin Professor of History and Public Affairs at Yale University.
“Trump’s actions in the wake of the November 2020 election are alarmingly similar to activities that have destroyed democracies in other countries.” Those actions include Trump’s:
- “Refusal to concede power”;
- “Pressure to alter the election through bureaucratic means”;
- “Exploring the use of state violence”;
- “Cultivating ties to private groups willing to use violence”; and
- “Deploying private violence to pressure officials who could alter election results.”
“The violence of January 6 did not shock President Trump into altering his behavior to avoid rousing his followers to violence. Instead, his continuing messages to supporters evoke a technique researchers call stochastic terrorism. Stochastic violence occurs when a figure with a large following publicly demonizes a target, knowing that it is impossible to predict who among the followers will act violently, but almost a certain probability that someone will aim for the desired mark.”
Common Cause, a nonpartisan, grassroots organization dedicated to fair elections, due process, and ensuring that government at all levels is more democratic, open, and responsive to the interests of the people.
“The Framers were especially concerned with the danger to democracy posed by violent insurrection and executive despotism.”
“Our democracy requires enforcement of the Constitution, even when inconsistent with majority will.”
“State courts have a particular interest in vindicating Section 3’s purpose: protecting the republic from insurrectionists returning to power. Trump exemplifies this risk by repeatedly threatening judges, judicial employees, and others involved in the court system. Declining to apply Section 3 for fear of Trump-incited mob violence would not prevent that violence; it would simply shift its burden to thousands of justices, judges, and court staff, and would invite more chaos, violence, and insurrection.”
Ilya Somin, Professor of Law at George Mason University and the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute.
“If there is no general requirement of a criminal conviction, there can be no requirement of a specific conviction under 18 U.S.C. § 2383, the federal criminal insurrection statute. Conviction under Section 2383 is not and was not designed to be the exclusive mode of enforcing Section 3 disqualification.”
Former Republican Officeholders
Former Republican members of Congress including Rep. Joe Walsh
“Barring pre-election enforcement of the disqualification clause also invites a repeat of January 6, and risks making Congress a target of political violence. At its core, the disqualification clause serves as a safeguard against individuals who have already shown that they will disregard their oaths and do violence to the Constitution and our democracy. To allow such individuals to avoid answering for their conduct until after they win an election would be disastrous for the country.”
Former Republican governors, Marc Racicot of Montana, William Weld of Massachusetts, and Christine Todd Whitman of New Jersey.
“[T]he disgraceful novelty of this case follows from the unprecedented, and largely unimaginable, nature of the conduct at issue; never before has our nation seen a President incite an insurrection to disrupt the peaceful transition of power and entrench himself in office, much less then, after his insurrectionist efforts failed, later seek to recapture the presidency.”
Civil Rights Experts
Sherrilyn Ifill, civil rights lawyer and scholar, and the Vernon E. Jordan Distinguished Chair in Civil Rights at Howard University Law School.
“Section 3 was enacted for such a time as this, and for such a figure as President Trump. Perhaps we hoped we would never need to activate its use again, and certainly not against an officer as highly positioned as the President of the United States. Section 3’s use is compelled in only the most rare and extreme circumstances. January 6th, and the weeks leading up to it, was such a circumstance. President Trump’s effort to overturn the results of the November 2020 election—by targeting the legitimacy of votes cast by Black voters in select ‘urban’ areas that his followers would associate with race, by using racist dog whistles to describe voters in those jurisdictions and those charged with counting the votes, by making relentless and unfounded attacks on Black poll workers, and by leading an assault on the Capitol that featured the Confederate flag parading through its halls—represents precisely the dangers that the 14th Amendment’s framers sought to protect our republic against.”
“To abandon Section 3 now would destabilize the balance struck by the 14th Amendment’s framers—a balance between guaranteed rights and structural tools that would allow those rights to withstand resistance to the vision and scope of the Amendment’s core promises.”
Scholars in African American Studies and constitutional law, Carol Anderson, at Emory University and Ian Farrell, Associate Professor at the University of Denver Sturm College of Law.
“Trump has repeatedly argued that his popularity should prevent his disqualification under Section Three, but our nation’s founders were quite clear that popularity does not supersede the Constitution’s mandates. Popular or not, no candidate is above the law.”
“[Numerous courts have had no trouble recognizing the obvious distinction between riots or 13 violent protests, on the one hand, and the insurrectionists’ unprecedented assault on the Capitol on January 6, 2021 when electoral votes were being counted.”
Trump’s argument on the officer question:
Trump argues that the president is not an “officer of the United States” based on constitutional provisions, such as the Appointments Clause and the Commissions Clause.
What our amici say:
25 historians including James McPherson, the George Henry Davis 1886 Professor Emeritus of United States History at Princeton University.
“For historians, contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th Amendment is most probative. Analysis of this evidence demonstrates that decision-makers crafted Section 3 to cover the President and to create an enduring check on insurrection, requiring no additional action from Congress.”
Michael T. Worley, co-author of the manuscript “Evidence that the President is an ‘Officer of the United States’ for Purposes of Section 3 of the Fourteenth Amendment.”
“The text of the Constitution repeatedly identifies the Presidency as an ‘office,’ and at the time of the Nation’s Founding the President was commonly referred to as an ‘officer of the United States’ or an ‘officer.’”
Constitutional Accountability Center, a public interest law firm dedicated to fulfilling the promise of the Constitution’s text and history.
“The Framers of Section Three sought to ensure that federal officials who swore to support the Constitution and ‘violated that oath in spirit by taking up arms against the Government of the United States [would] be deprived…of holding office.’ Cong. Globe, 39th Cong., 1st Sess. 2899 (1866). This goal would be undermined if Section Three of the Fourteenth Amendment did not apply to the presidency and the president, as its plain text demands.”
Trump’s argument on due process:
Trump argues that despite having a five day trial featuring 15 witnesses and nearly 100 exhibits, he was not provided sufficient due process.
What our amici say:
Former Colorado Secretary of State, Mary Estill Buchanan.
“The Fourteenth Amendment does not recognize any protected interest in public office. And because public office is the interest here, Trump cannot claim a due process violation.” Brief at 20.
“Colorado also provided Trump with a robust opportunity to present his case and challenge the evidence presented against him—process more robust than many types of civil proceedings. The trial court held a five-day trial that included fifteen witnesses, hours of video evidence, and documentary evidence included in nearly one hundred exhibits that more than satisfied what Due Process requires. Trump’s counsel participated in full—admitting documents, presenting witnesses, cross-examining Respondents’ witnesses, challenging the admissibility of evidence under Colorado’s evidentiary rules, and having ample opportunity to present his contentions regarding the legal significance (or insignificance) of the evidence the trial court admitted.”
Ilya Somin, Professor of Law at George Mason University
“Mr. Trump faces no ‘desperate’ situation. Eligibility for the presidency is not an essential need. If Mr. Trump is no longer eligible for the presidency and various other public offices, he will not starve or become homeless. Even when it comes to the deprivation of vital welfare benefits for the poor, this Court has held that due process requires only an administrative hearing, not a ‘judicial or quasi judicial trial.’ Certainly, any such requirement was easily met by the five-day trial with fifteen witnesses and extensive pre-trial motions practice held by the Colorado court in this case.”
What Trump’s amici say about the 20th Amendment:
Senator Ted Cruz and fellow congressional Republicans argue that states cannot apply Section 3 and that the decision should be left to Congress’s electoral process pursuant to the 20th Amendment–certification on January 6th.
What our amici say:
Edward J. Larson, Ph.D, University Professor of HIstory at Pepperdine University and one of the few scholars of the original public meaning of the Twentieth Amendment.
“Yet certain of Petitioner’s amici in this case have advanced a novel and unsupported interpretation of the Twentieth Amendment that would erode the authority of states over the federal elections conducted within their states in a manner foreign to the Twentieth Amendment’s text, history, and purpose, and at odds with the constitution’s federal structure.”
Former officials of the last six Republican administrations, and senior officials of the White House and U.S. Department of Justice, including Judge J. Michael Luttig.
“Section 3 of the Twentieth Amendment does not restrict the pre-existing power of state courts and the Supreme Court to adjudicate a presidential qualification dispute before election day. Nor does it assign any judicial power to Congress.”
“State courts do not need congressional legislation to enforce the Due Process Clause or Equal Protection Clause. In fact, the Fourteenth Amendment constitutionalizes these protections precisely so that they do not depend on the whims of Congress.”
Trump’s argument on insurrection and enforcement of Section 3:
Trump argues that he did not engage in insurrection against the Constitution of the United States. He further posits that Section 3 can only be enforced through implementing congressional legislation, not by state courts or state officials.
What our amici say:
Pulitzer Prize winning historians including Jill Lepore, the David Woods Kemper ‘41 Professor of History at Harvard University and David Blight, the Sterling Professor History and African American Studies at Yale University.
“Without a disqualification clause that would endure, a Congressional committee warned, ‘flagrant rebellion, carried to the extreme of civil war,’ would become ‘a pastime.’ … Insurrectionists could take over state legislatures, state houses, Congress, the cabinet, and even the White House. Section Three was meant to prevent that possibility. Its framers intended Section Three: (1) to automatically disqualify insurrectionists; (2) to apply not only to the Civil War but also to future insurrections; and (3) to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States. It remains in place and in force today.”
Kermit Roosevelt, the David Berger Professor for the Administration of Justice at the University of Pennsylvania Carey Law School.
“The immediate post-ratification history supports the view that Section Three has independent legal effect. Soon after the ratification of the Fourteenth Amendment, Congress enacted amnesty bills. These acts specified in their titles that they were acts ‘to relieve certain persons … from legal and political disabilities imposed by the Fourteenth Amendment.’ There was no enforcement legislation in place, so the enactment of these bills suggests that Congress (and the former Confederates who sought the bills) believed that the disability existed without legislation—that, as the bills declared, it was ‘imposed by the Fourteenth Amendment.’”
Mark A. Graber, Regents Professor at the University of Maryland Francis King Carey School of Law. Professor Graber has researched the framing of Sections Two, Three, and Four of the Fourteenth Amendment for almost a decade.
“The Members of Congress who played a crucial role drafting Section Three stated that no difference existed between inciting and engaging in an insurrection.”
“The persons who framed the Second Confiscation Act and Section Three of the Fourteenth Amendment thought the persons who incited insurrections more blameworthy than the insurgents they inspired.”
Trump’s argument on the First Amendment:
Trump argues that his Ellipse speech is First Amendment protected speech and did not “incite” or “engage in insurrection” on January 6, 2021.
What our amici say:
First Amendment scholars and practitioners including Floyd Abrams, Senior Counsel at Cahill Gordon & Reindel LLP and litigator of numerous First Amendment cases before the U.S. Supreme Court; Bruce Ackerman, Sterling Professor of Law and Political Science at Yale Law School; and Erwin Chemerinsky, the Dean of the University of California Berkeley School of Law.
The First Amendment arguments of Trump and his amici “ignore the fact that Section 3 is a constitutional provision of high importance but exceedingly narrow scope and effect. Because it is a constitutional provision of high importance, the First Amendment cannot simply ride roughshod over it. Instead, the two provisions must be harmonized. That should not be difficult: Because Section 3 is of exceedingly narrow scope and effect, it poses little threat to First Amendment speech rights. It is merely an additional qualification for office, affecting a small category of people who voluntarily assumed the burdens associated with taking an oath to support the Constitution, and who then violated that oath by lending their energies to an extraordinarily rare event—an insurrection against the Constitution of the United States.”
“Trump left no doubt that he ‘mean[t] to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals’ —namely, that he intended at a minimum to incite his supporters to prevent legislators, through threats of violence, from voting to certify the presidential election.”
Current and former U.S. Capitol Police officers who risked their lives to defend the Capitol on January 6, 2021.
“Far from mere advocacy, Mr. Trump’s speech ‘has no social value,’ is ‘intended to bring about a particular unlawful act,’ and is not protected by the First Amendment. This Court should hold, consistent with its precedents, that the First Amendment does not apply to Mr. Trump’s statements leading up to or on January 6 promoting the attack on the Capitol.”